M.L. MUBARAK BASHA AND OTHERS versus MUNI NAIDU

Citation: [1997] 1 S.C.R. 7 · Decided: 06-01-1997 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

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M.L. MUBARAK BASHA A!'ID ORS. 
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MUNI NAIDU 
JANUARY 6, 1997 
(K RAMASWAMY AND G.T. NANAVATI, JJ.] 
(o,de of Civil Procedure, 1908 i Section 47-0rder 21-Rule 
66-Decree-Execution-Auction sale-PdWer of Commissioner to fix the · 
upset plice in conducting the sale-Direction giveit by Executing Cowt to 
Commissioner not only to conduct sale but also to fv: upset plice=Application 
for setting aside of sale on the ground that Commissioner had no power to 
fv: upset plice-Rejection of-Held Rule 66 indicates in unequivocal tenns 
that that is the function of tite C01M, while proclamation is drawn up, to fv: 
the amount of the recovCJy for which tlit! sale is ordered and also to specify 
such other pmticulars as are necessmy in that behalf to be matelial for the 
purpose of conducting the sale-171e value of the properi)i givei1 by the decree-
holder-Judgment-debtor and the upset plice is to be fv:ed under the residue 
clause relating to w1it mies made by the High Cowt-17iere was no infraction 
of tire mandatory language contained in Order XX!, Rule 66, CPC as the 
Commissioner had fv:ed the upset price not 011 his own but on the directi011 
of the Court itself. 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 101 of 
1997. 
From the Judgment and Order dated 28.8.95 of the Madras High 
Court in L.P.A. No. 205 of 1995. 
S. Muralidhar and Ms. Neeru Vaid for the Appellants. 
M.N. Padmanabhan and K.K. Mani for the Respondent. 
The following Order of the Court was delivered : 
Leave granted. Heard the learned counsel for the parties. 
This appeal by special leave arises from the Division Bench judgment 
of the Madras High Court, made in LP A No. 205/1995 on August 28, 1995. 
The appellant had filed a suit, viz., O.S. No. 69/1976 in the Court of 
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SUPREME COURT REPORTS 
[1997] 1 S.C.R. 
A Subordinate Judge, Thiruvanamalai for partition and separate possession 
of his 16/64 share in the plaint schedule property. A preliminary decree 
passed for partition was confirmed. Before, the final decree was passed, 
the property at Item No. 18 of the plaint schedule, namely, Saw Mill, was 
initially brought to sale between the parties, as per the directions of the 
B Court; subsequently, there was a public auction thereof. In the public 
auction, the second respondent c'ame to purchase the property for a sum 
of Rs. 1,03,600. An application had been filed by the appellant under 
Section 47 of C.P.C. for setting aside sale. Though several grounds had 
been raised, none of them was pressed. But one ground canvassed before 
the High Court and pressed for consideration before us is that the Com-
C missioner had no power to fix the upset price in conducting the sale. Since 
this point was raised for the first time before the High Court, the Division 
Bench has rejected the same and confirmed the sale though it was upset 
by the learned Single judge Thus, this appeal by special leave. 
It has been strenuously contended by the learned counsel for the 
D appellants that in terms of the mandatory language used in Order XXI, 
Rule 66, sub-rule (2)(d) & (e), CPC, the Commissioner has no power to 
fix the upset price which is the judicial function of the Court. Therefore, it 
goes to1 the root of the matter. We have given opportunity to the learned 
counsel to place the necessary material before us in that behalf. Both 
E parties have filed their record and also their affidavits. The only question 
is : whether the Commissioner or the executing Court can fix the upset 
price? Order XXI Rule 66 postulates thus : 
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"66. Proclamation of Sales by public auction - (1) Where any 
property is ordered to be sold by public auction in execution of a 
decree, the Court shall cause a proclamation of the intended sale 
to be made in the language of such Court. 
(2) Such proclamation shall be drawn up after notice to the 
decree-holder and the judgment-debtor and shall state the time 
and place of sale, and specify as fairly and accurately as possible-
(a) the property to be sold (or where a part of the property 
would be sufficient to satisfy the decree, such part); 
(b) the revenue assessed upon the estate or part of the estate, 
where the property to be sold is an interest in an estate or in part 
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M.L.M. BASHA v. MUNI NAIDU 
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of an estate paying revenue to the Government; 
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( c) any encumbrance to which the property is liable; 
( d) the amount for the recovery of which the sale is orde

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